EIL18 v Minister for Immigration
[2020] FCCA 2675
•18 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EIL18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2675 |
| Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5AA, pt.7 Sentencing Procedure Act 1999, s.10A |
| Applicant: | EIL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 439 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 18 August 2020 |
| Date of Last Submission: | 18 August 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 18 August 2020 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application filed 22 August 2018 and amended on 15 October 2019 is dismissed.
That the Applicant pay the costs of the First Respondent fixed in the sum of $12,000.
IT IS NOTED:
(A)That the Order of Judge Kendall dated 3 June 2020 is sufficient to discharge all outstanding applications pressed by the parties in these proceedings with respect to the issue of subpoenas.
(B)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PEG 439 of 2018
| EIL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
On 20 July 2018, the Immigration Assessment Authority (“the IAA”) affirmed a previous decision not to grant the Applicant, EIL18, a protection visa. On 22 August 2018, the Applicant asked this Court to review the decision.
The claims of the Applicant could be summarised as follows. The Applicant is of Bengali ethnicity and is a Muslim. He was born in a village near the border between Bangladesh and India. Although he is not active politically, he was a supporter of the Bangladesh Nationalist Party (BNP). The opposition to the BNP, the Awami League, was the political party in government at the time.
The Applicant said that gangsters and the local terrorists who supported the Awami League often beat him and extorted money from him. He claimed that the Awami knew that he was a supporter of the BNP and he was targeted because of that. He said they insulted him and caused trouble to his business. He spoke of some specific incidents that he recalled. The first one was that in August 2010 these people came to his shop and demanded that he pay them. When he refused, he was beaten and attacked with an axe.
He said that he required hospitalisation for about a week and then he stayed home for a month because he was unable to work. He said that he was scared because he had been threatened that he would be killed if he went to the police. The Applicant said that he believed the police would not be allowed by high level ministers to investigate a case like his. He did say that he, notwithstanding that, did make a complaint to the police but the police were not interested and therefore he lost hope that he would ever be protected.
He said that these people came to his shop a second time in late 2010 and when he refused to give them all the money, they pushed him aside, broke the till and emptied it. He said that he still sought help from the police but they gave him no assistance.
The next incident occurred in June or July 2011, again, people coming to his shop, taking money and damaging his shop. He said that in this incident, he was attacked and he had to seek treatment which required two weeks for him to fully recover.
He said the next incident was in 2012, when five armed people came to the shop on motorbikes. They swore at the Applicant and accused him of not supporting their party. He said that they told him that he could not make his business without paying them their share and when he refused, he was assaulted and the money was taken.
The final incident he spoke of occurred, he said, in March 2013. He said that Awami gangsters attacked the Applicant’s family home where he, his mother and his brother were present. His brother escaped but his mother was injured and had permanent damage done to her eye.
The Applicant said that generally he was abused and discriminated against by Awami members. He said this was because his father, they claimed, was a refugee Indian and so that therefore the Applicant should go back to where his father came from. He said that despite asking for help on a number of occasions, the police did not because they were under political pressure from the Awami League.
The Applicant said that he did not move to another place because his life would still be in danger no matter where he moved in Bangladesh. He said that the authorities would not protect him because the police are under the influence and control of the Awami League.
He said that if he returned to Bangladesh, the same existence would be continued but he feels that he would be killed if he did not pay money to the extorters.
The IAA looked at those claims in a very thorough manner. The country information was that, though the Awami League were in power during this time, the relationship with the BNP was still one of a longstanding enmity. The country information was that, in rural areas, members and associates of the Awami League have been reported to have extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money. The country information was that these people enjoy impunity from their crimes because of political influence.
The IAA noted that on the Applicant’s own evidence, his support for the BNP was non-active and did not include any association or involvement with them. The IAA looked at the dates that the Applicant had given for these attacks and concluded that these attacks were intermittent.
The intermittent nature of those attacks suggested to the IAA that the attacks were random, opportunistic and criminal but did not reflect a particular interest in the Applicant or his family. The IAA said that whilst they considered the Applicant’s claims that he was extorted and attacked as plausible, the IAA was not satisfied that the persons who demanded money and attacked the Applicant did so because of his imputed political views, or because his father was a refugee from India, or for any other reason other than a criminal motive to obtain money.
The IAA noted that those events were now over five years old and that there was no claim that there have been any similar incidents since he had left Bangladesh. The IAA considered the chance of the Applicant being extorted and seriously harmed in the future to be less than a real one. The IAA was not satisfied that these incidents were anything other than random, opportunistic and criminal.
Notwithstanding that the Applicant had claimed that the police would not assist him because they were under pressure from the Awami League, the IAA was not satisfied that there was a persecutory, selective and discriminatory withholding of protection from the Applicant because he was a supporter of the BNP. The IAA accepted that the Applicant would still continue to support the BNP in the future, but his would be a passive support.
The country information indicated that the political atmosphere in Bangladesh was violent with election periods seeing hundreds killed and thousands injured. Other country information was that the number of people affected by political violence remains low in proportion to the size of the major parties. The IAA did not accept that the harm the Applicant experienced was because of his real or imputed support for the BNP. The IAA said that they found the prospect of the Applicant being targeted for, or otherwise caught up in, political violence to be no more than remote.
The Applicant had spoken about his attackers making derogatory comments about his father being a refugee from India. The IAA said that they accepted that such comments would be upsetting, but they were not satisfied that this amounted to serious harm and were not satisfied that there was a real chance of the Applicant being harmed by persons associated with the Awami League because of his father’s background.
The IAA then looked at what would happen to the Applicant if he returned to Bangladesh. This was because he had left Bangladesh by boat, he would be returning to Bangladesh as a failed asylum seeker and, as I will speak of soon, the Applicant did have criminal matters in Australia.
These claims were not actually raised by the Applicant but the IAA still considered them. The IAA did not expressly refer to what matters that the Applicant was convicted of, only that he did have criminal convictions in Australia. The IAA looked at Bangladeshi law and their position on double jeopardy. They found that there was no evidence that the Bangladesh authorities routinely investigate and prosecute citizens over offences that were committed abroad.
As for returnees, the country information was that Bangladesh accepts returnees, but a community level police check is sometimes required to verify identity and citizenship. There was no evidence to suggest that returnees have received adverse attention from authorities or others. Notwithstanding that it is an offence in Bangladesh to depart Bangladesh other than in accordance with procedures laid down in the law, the information is that these provisions are not enforced and, in fact, the Bangladeshi authorities are generally sympathetic to irregular migrants.
The IAA said that there was no evidence to suggest that the Bangladeshi authorities were aware of the Applicant’s conviction, or history, or circumstances in Australia and so there was no more than a remote prospect that they would either prosecute or harm him because of these matters if they became aware of them. The IAA found that there was not a real chance of the Applicant being harmed in connection with his time in Australia, including his criminal history, because he departed Bangladesh illegally or claimed asylum, or any combination of these matters.
For these reasons the IAA concluded that the Applicant did not meet the refugee criteria.
The IAA then looked at the complementary protection criteria. The IAA again looked at his support of the BNP and was not satisfied that there was a real risk of him being harmed in connection with that support. The IAA looked at the derogatory comments made about the Applicant’s father but did not consider that such would amount to significant harm within the meaning of that word in the Migration Act 1958 (Cth) (“the Act”).
The IAA have looked at the fact that they had already found that there was no real chance of the Applicant being harmed in his connection with his time in Australia. The IAA looked at the fact that they accepted that the Applicant had been extorted and attacked in the past, but were not satisfied that there was a real risk that this would occur in the future. But even if he were to suffer such harm, the IAA said that they were not satisfied it would be anything other than purely random, opportunistic and criminal, and such a risk is a risk that is faced by the population of Bangladesh generally.
The IAA concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Bangladesh, that there was a real risk that the Applicant would suffer significant harm. Therefore the Applicant did not meet the complementary protection criteria. For those reasons, the IAA affirmed the decision not to grant the Applicant a protection visa.
There is one ground in his Amended Application, filed 15 October 2019, it is :
The Second Respondent (the IAA) did not have the jurisdiction to conduct a review under Part 7AA of the Migration Act 1958 (Cth).
The rationale behind this ground was that the Applicant seemed to have been intercepted in the vicinity of Ashmore and Cartier Islands but that his entry interview was conducted at Darwin, it would seem, a month after being intercepted. The lawyers who were representing the Applicant filed this ground on the basis that it had not been shown that the Applicant had first set foot on Australian soil at a particular port. The Full Court of the Federal Court had ruled that the territory of Ashmore and Cartier Islands was not an excised offshore place. The simple reasoning is that Ashmore and Cartier Islands do not have a safe port where people actually disembark and set foot on Australian soil at that particular place.
Invariably, what happens is that persons who are intercepted at Ashmore Reef are taken to Darwin and, therefore, the first place in which they step foot on Australian soil is Darwin. If it were that the Applicant had first stepped foot on Australian soil at Darwin, then he would have not been a fast-track applicant or an unauthorised maritime arrival under s.5AA of the Act. The Applicant claimed that the records of the Department were that he was intercepted at Ashmore and that he went to Christmas Island on 24 March 2013.
He said that the journey was about three days to Christmas Island, therefore, for that period of eight or nine days between 19 and 24 March 2013, he must have been kept in a place other than Christmas Island.
The records, that have been produced and are annexed to affidavits of Ashley David Burgess and Georgina Roberta Ellis, indicate that the Applicant’s boat was first seen by aircraft around midday on 18 March 2013. At about 4.00pm on 18 March 2013, the Applicant’s boat was intercepted by HMAS Broome. HMAS Broome escorted the boat from open sea to the safe harbour/lagoon of Ashmore Reef.
On 21 March 2013, the ACV Ocean Protector completed the transfer of all the passengers from the Applicant’s boat. There were 78 passengers and three crew members. The ACV Ocean Protector then completed the transfer of all persons from the Applicant’s vessel to the Australian government agencies on Christmas Island at about 7.00pm on Sunday, 24 March 2013. It would seem, therefore, that there are no missing time periods on the records of the First Respondent. Therefore, on the evidence which is un-contradicted, the Applicant first set foot on Australian soil at Christmas Island on 24 March 2013.
This is also in keeping with the evidence he gave here today that he was on board for six or seven days. This would mean that the Applicant is a fast-track applicant. He is an unauthorised maritime arrival as that term is used in s.5AA of the Act but, more importantly, it means that the IAA did, in fact, have jurisdiction to hear the matter.
The Applicant complains that his understanding was that, whilst he was on the ACV Ocean Protector, the original plan was for the group to be taken to Darwin, but there was a message received from Darwin that the detention centres were full, and so therefore a decision had been made to take the Applicant and all the other passengers on that boat to Christmas Island.
His complaint is that it is not fair that the original destination of Darwin was not the one that he was taken to, because if he had been taken there, then the IAA would not have had jurisdiction. Whilst one can complain about these matters and wail and gnash their teeth, the fact is that the Applicant did first step foot on Christmas Island and, therefore, the provisions of Part 7AA of the Act are applicable to his situation. There is no jurisdictional error that is illustrated by the Amended Application filed in October 2019.
Because the Applicant is unrepresented and is assisted by an interpreter, I invited him to make any other submissions he wanted to make generally about any error that he said that the IAA had committed. He spoke generally about what he considered to be the unfairness that he has suffered since 2016.
To understand this, one does have to know what has happened to the Applicant since his arrival in Australia. Having made his application for a protection visa, the Applicant had a bridging visa. He was allowed to stay and live in the community.
In 2016, he was charged with offences of common assault and assault occasioning bodily harm. There was also an application for an apprehended domestic violence order on behalf of the aggrieved (being the person who is the complainant in the assault matters). Upon being taken into custody for those matters the Applicant had, he said, made or was about to make what he considered to be a successful application for bail. However, considering the nature of the charges, the Department instead cancelled his bridging visa. He, therefore, did not have bail because he did not have the right to be in the community.
He was kept in custody until his matter was resolved on 16 April 2018. It would seem that he was convicted of the offence of common assault, but acquitted of the offence of assault occasioning bodily harm. An Apprehended Domestic Violence Order was made for the protection of the complainant on that day as well. With regard to the penalty for the offence of common assault, the notation is that the Applicant was convicted pursuant to s. 10A of the Sentencing Procedure Act 1999 with no penalty imposed. This meant that the Applicant was now not in custodial detention but he was now in immigration detention.
His complaint generally about fairness is that, because of the visa cancellation and his imprisonment, he was deprived of the contact that he had had with his immigration lawyer. He said that since that time, he has been under pressure, he has been attacked in prison by other prisoners, he now has chronic illness and high blood pressure, and he has not had the opportunity to express himself as he would have liked to have done. One of his complaints is that he was not given the opportunity to be interviewed by the Delegate who was assisting his SHEV application.
At page 85 of the Court Book there is a transcript of an interview between the case officer and the Applicant. The Applicant’s interpretation, as he gave to me, was that he was told that he had an interview the day before his interview and he was given a five minute choice about whether he would be interviewed or not.
The transcript shows that the Delegate was asking whether the Applicant wished to participate in the interview, but the Applicant refused to do so until his criminal matters had been disposed of. I should add that this interview between the Delegate and the Applicant occurred on 27 March 2018, which was about three weeks before the Applicant’s matters were finalised by Court in New South Wales.
The Applicant was adamant that he would not talk to the Delegate until his matters were finalised, and at that stage, this was an indefinite period. The Delegate explained to the Applicant that the Delegate would be able to make a decision on the facts that were before it at that time.
The Delegate did make a decision, but did not make that decision until 7 June 2018. As I have previously said, the Applicant’s criminal matters were finalised on 18 April 2018, which was some five or six weeks before it was that the Delegate made the decision. There did not seem to be any contact between the Applicant and the Delegate or the Department in that intervening period.
After the Delegate did make the decision, the Applicant was given all of the material that showed that the matter was now being looked at by the IAA. The Applicant emailed the IAA on 17 June 2018 and asked if he could speak to persons, with a Bengali interpreter because his English was weak, and he needed to contact them.
On 22 June 2018, the Applicant called the IAA and requested that he be allowed to be interviewed by the IAA. The administrative officer said that, generally, they do not provide interviews but that he could send through a request to the IAA for them to consider interviewing him. The IAA looked at this aspect and came to the view that the Applicant had been given ample opportunities to be interviewed.
The IAA looked at the transcript that I have already spoken of, which detailed that the Applicant did say to the Delegate that he was “feeling unwell”, but that when the Delegate asked if he had been to the medical facility in the prison, the Applicant said that he had not. The Delegate concluded and said to the Applicant that there was no medical reason or medical evidence as to why he could not participate in the interview. The Applicant replied that there was too much stress for him to have two matters at the one time, and that he would not talk to them until his “other” matters were over.
The Delegate told the Applicant what the consequences would be if he failed to participate in the interview. The Applicant did have a migration agent who spoke to the Delegate during this time as well.
The decision as to whether the IAA should interview an Applicant is very much a discretionary one. The IAA in this case looked at all of the circumstances and came to the decision that considering what the Applicant had done with regard to his interview with the Delegate, that in those circumstances the IAA would not invite any new information from the Applicant.
That was a decision that was open to the Delegate and it is not to the point that some other Delegate or someone else in the Delegate’s shoes may have made a different decision. As this conclusion was open to the IAA, there is no jurisdictional error illustrated by this action.
The Applicant also claimed that, because his birthplace was in a disputed area within India, his actual birthplace now is apparently in India, rather than Bangladesh. He made the claim before me today that he was therefore not a Bangladesh citizen. However, this claim has never been made before.
The interview that the Applicant gave in April 2013, in Darwin, indicated that he was a Bangladesh citizen and was not a citizen of any other country. He explained, in that interview, his birthplace and the controversy with India, as well as his father’s citizenship matters. This new claim, made before me today, was not a claim that arose in the material before the IAA and, so therefore, it was not a claim that the IAA could have looked at in any event.
There has been no jurisdictional error illustrated by a failure to consider the Applicant’s citizenship.
The rest of the Applicant’s submissions were a reiteration of his claims and an imploring by the Applicant for me to accept those claims as being true. He said that no one would chose to make the boat voyage that he endured unless they were truly desperate to leave the country because they feared for their life.
He then made a final exhortation to me and, it would seem, also to Mr Chan, who represents the Minister, to consider the humanitarian aspect of his plight and to give him a chance. To the extent that his submissions amounted to an invitation for an impermissible merits review, the submissions do not demonstrate any jurisdictional error.
As to his impassioned plea for humanitarian consideration, unfortunately those are not part of my remit. My job is to determine jurisdictional error. Having thoroughly dissected the IAA decision, having looked at all of the circumstances and having listened to the submissions of the Applicant, I find that there has been no jurisdictional error established.
I therefore dismiss the application with costs in the sum of $12,000.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 23 September 2020.
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